Federal judge sends elections case back to Ohio Supreme Court

COLUMBUS - A federal judge, whose earlier ruling in an Ohio elections case was overturned on Friday by the U.S. Supreme Court, has kicked a similar Republican lawsuit against Democratic Secretary of State Jennifer Brunner out of his court and back to the Ohio Supreme Court.

After the U.S. Supreme Court dismissed an Ohio Republican Party lawsuit seeking to force Brunner to cross-check about 700,000 newly registered voters this year against a state driver's license database, Republican fundraiser David Myhal re-filed a similar case in the Ohio Supreme Court.

On Monday, Brunner, through state Attorney General Nancy Rogers, filed a motion to move the case to federal court because at issue was the Help America Vote Act, a federal statute.

"Although styled as a 'petition for writ of mandamus' based on both state and federal law," Rogers wrote, "even a cursory and preliminary review of the petition seeking a writ of mandamus clearly reveals that Myhal seeks relief based on the precise HAVA claims that were considered by the highest court in the federal judiciary."

But U.S. District Court Judge George C. Smith disagreed, saying the Myhal case is a challenge to how Brunner is implementing a state election law that is intended to apply HAVA rules in Ohio.

"Plaintiff's petition does not on its face state a claim arising under federal law," Smith wrote. "Instead, Plaintiff's petition asks the court to compel the secretary to comply with her duties under state law."

Smith, who was appointed by former Republican President Ronald Reagan, sided with Republicans in the initial case that was eventually dismissed by the U.S. Supreme Court, saying private parties should use avenues other than federal courts to satisfy these disagreements.

The entire seven-member Ohio Supreme Court is made up of Republican justices. And Myhal has helped the campaign efforts of at least four of them - Justices Terrence O'Donnell, Robert Cupp, Evelyn Lundberg Stratton and Maureen O'Connor. Stratton and O'Connor are up for re-election in two weeks.

Lt. Gov. Lee Fisher on Sunday called for the four justices to recuse themselves from the Myhal case, citing a conflict of interest. So far, only Stratton and O'Connor have.

Brunner now has to respond to Myhal's filing by today, and both sides must present briefs and evidence to the court by Wednesday.

Chief Justice Thomas Moyer has assigned two judges to fill in. Stratton will be replaced by William Wolff Jr., a Democrat on the Second District Court of Appeals. O'Connor will be replaced by Republican Lynn Slaby of the Ninth District Court of Appeals. The same two filled in for Stratton and O'Connor on an elections case earlier this month.

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